Strategy on getting a trustee to settle before having to go to trial

Trying to settle with a Bad Trustee

Here’s a playbook that usually gets reluctant trustees to the table— and makes trial their least attractive option.

1. Build an airtight, trial‑ready case (even if you hope to settle)

Why it works What to do
Trustees settle when they see they’re likely to lose—and pay out of pocket.

• Assemble a clear liability timeline, supporting documents, and damages spreadsheet.

• Retain an expert (forensic accountant or trust-law CPA) early and share their preliminary findings with the other side.

• Draft—but don’t yet file—a petition for removal, surcharge, and attorney‑fee shift; let opposing counsel preview it.

2. Control the information flow

Compel what they won’t volunteer.

  • Serve formal discovery and subpoenas on banks, brokers, and any buyers of trust property.

  • Notice the trustee’s deposition early, then offer to vacate it in exchange for meaningful settlement talks.

Psychology: Facing sworn testimony and third‑party subpoenas makes “dragging it out” feel dangerous.

3. Leverage interim court relief

  • Motion to compel an accounting or freeze suspect accounts.

  • Seek temporary suspension of the trustee if losses are ongoing.

  • Even a hearing date on these motions often drives settlement—nobody likes explaining themselves under oath.

4. Put real numbers on the table

Deliver a written demand that:

  1. States concrete damages (principal, interest, your fees) with citations to evidence.

  2. Expires on a fixed date.

  3. Warns that after expiration you will seek full surcharge plus punitive remedies.

Make it easy for them to say “yes” by spelling out the mechanics: payment schedule, releases, court approval.

5. Use neutral pressure points

  • Mediation with a retired probate judge: pick someone the court often appoints; trustees listen to those voices.

  • Mandatory settlement conference: request it once discovery pinpoints liabilities.

  • Private‑judge mini‑trial (high/low arbitration) as a fallback.

6. Keep the heat on—politely

Regular status updates to opposing counsel that highlight each new adverse fact or cost (expert fees, upcoming hearings) reinforce that delay only worsens their position.

7. Signal readiness, not eagerness

Offer settlement after significant milestones (motion granted, key depo completed). Showing you’re prepared—and willing—to finish the fight is the single best way to end it early.

Quick checklist

  • Forensic summary + damages model circulated

  • Deposition notices served

  • Motions for accounting / freeze filed

  • Written demand with deadline issued

  • Mediator lined up & court dates set

Execute these steps methodically and most trustees choose a check over a courtroom.